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Norwich Pharmacal orders: an introduction

19 August 2019

What is a Norwich Pharmacal order?

A Norwich Pharmacal order (NPO) is a type of court order, granted when other methods of obtaining information or documents from a third party are not available. It is commonly used to identify a proper defendant to an action or to obtain information to plead a claim.

An application for an NPO can be made before proceedings have commenced, however, it should generally only be made against a party that is not likely to be a party in the subsequent proceedings, but is involved or linked in some way to the wrongdoing.

After proceedings have commenced, there may be a need to obtain information, rather than just documents, from a person who is not and will not be a party.

When might you need an order?

The most common scenario is that you know a wrong has been committed against you, but not who committed it.

An example is the case from which NPOs take their name: Norwich Pharmacal v Commissioners of Customs & Excise [1974] UKHL 6. Norwich Pharmacal had patented a chemical compound. Customs held information about unlicensed imports of the compound. Norwich Pharmacal was unable to start claims against the importers without information from Customs to identify them. The court ordered Customs to disclose this information, despite the fact that Customs would not be a party to any of the later claims.

Apart from identifying wrongdoers, NPOs can also be used to identify the full nature of wrongdoing and enable a party to plead its case; to obtain the source of information contained in a publication and to assist execution of a judgment.

The party holding the relevant information may be unwilling to disclose it without a court order, particularly if to do so would breach a duty of confidentiality: as, for example, in cases where an Internet Service Provider holds identifying details about someone who is publishing defamatory material online.

How would you get an order?

An application would need to be made to court.

NPOs are an equitable remedy, so it is at the court’s discretion whether they should be granted in the particular circumstances. The court must be satisfied that: no alternative CPR provision could be used; the respondent is likely to have relevant documents or information; there is a good arguable case that there has been wrongdoing; the respondent is not a “mere witness” but is involved in the wrongdoing; and that the order is necessary in the interests of justice, and is not sought for an improper purpose.

The respondent’s involvement in the wrongdoing can be innocent, as long as the wrongdoing was facilitated by their role in it: for example, in the Norwich Pharmacal case, Customs & Excise processed the unlicensed imports, even though they did so innocently and indeed under a statutory duty.

The applicant must also be prepared to pay the respondent’s legal costs, and the reasonable cost of their compliance with the order. However, these costs could potentially be recoverable in damages from the losing party to the litigation.